R. v. Ahmad, 2007 CanLII 29282 (ON SC)
R. v. Ahmad, 2007 CanLII 28750 (ON SC)
July 23, 2007
Alleged ring leader in Ont. terror case gets bail
November 5, 2007COURT FILE NO.: 1750/07A
DATE: 20070724
ONTARIO
SUPERIOR COURT OF JUSTICE
| B E T W E E N: | ) | |
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| TORONTO STAR NEWSPAPER LTD. | )) | Mr. Tony Wong, for Toronto Star Newspaper Ltd. |
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| Intervener | ) | |
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| FAHIM AHMAD,
ZAKARIA AMARA,
SHAREEF ABDELHALEEM,
QAYYUM ABDUL JAMAL,
YASIN ABDI MOHAMED,
JAHMAAL JAMES,
AMIN MOHAMED DURRANI,
STEVEN CHAND,
SAAD GAYA, AND
MOHAMMED ALI DIRIE |
)
) )))))))))))))))))))))))) |
Mr. Dennis Edney, for Fahim Ahmad
Mr. David Kolinsky, for ZAKARIA AMARA
Mr. William Naylor, for Shareef Abdelhaleem
Mr. Anser Farooq, for Qayyum Abdul Jamal
Mr. Edward Sapiano, for Yasin Abdi Mohamed
Mr. Donald McLeod, for Jahmaal James
Mr. Ravin Pillay, for Amin Mohamed Durrani
Mr. Michael Moon, for Steven Chand
Mr. Paul Slansky, for Saad Gaya
Mr. David Mercury, for Mohammed Ali Dirie |
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| Applicants
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| SAAD KHAILD | )
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Ms. Ingrid Grant, for Saad Khaild |
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| Applicant
(Respondent on Cross-Application by the Crown in the Right of Canada) |
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| HER MAJESTY THE QUEEN IN THE RIGHT OF CANADA | )) | Mr. John North, and Mr. Marco Mendicino, for the Crown (Canada) |
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| Respondent
(Applicant on Cross-Application Against Saad Khalid) |
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| – and – | ) | |
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| HER MAJESTY THE QUEEN IN THE RIGHT OF ONTARIO
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))) | Mr. Robin Basu, and Mr. Michael Dunn, for the Ministry of Community Safety and Correctional Services |
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| Respondent | ) | |
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| ) | HEARD: June 22, 2007 |
ENDORSEMENT
DAWSON J.
[1] This endorsement deals with the application brought by Toronto Star Newspaper Ltd. in the midst of a bail review, habeas corpus application and Charter application, to set aside, at least in part, a non-publication order I made at the request of counsel for Saad Khalid. The order was made pursuant to ss. 521(10) and 517(1) of the Criminal Code. The background to this application can be found in my detailed reasons for judgment on the main application which were released on July 23, 2007. At paras. 13-14 of those reasons I comment on this request by the Toronto Star.
[2] In the particular circumstances of this case the non-publication order was mandatory. Counsel for Mr. Khalid sought the order in connection with the Crown’s application pursuant to s. 521 of the Criminal Code. As I mentioned in my reasons for judgment on the main application, all of the evidence was led together on these combined applications, and the non-publication order has the effect of preventing publication of any of the evidence. Most of this evidence has also been led in the past on a number of bail hearings where other non-publication orders were made and remain in effect.
[3] Issues with respect to some of those other non-publication orders have been dealt with in detail by Durno J. of this court in two separate judgments: Toronto Star Newspaper Ltd. v. Canada, [2006] O.J. No. 3062; Toronto Star Newspaper Ltd. v. Canada, [2007] O.J. No. 752.
[4] Mr. Wong argues on behalf of the Toronto Star that the evidence I have heard about the conditions of the applicants’ imprisonment at the Maplehurst Correctional Complex is not evidence that falls within the scope of the interests an order under s. 517(1) is designed to protect. He argues that such evidence is severable from the real issue the court is dealing with in the main applications.
[5] I cannot accept this submission. As my reasons for judgment in the main application clearly show, the real issue before me is whether the conditions at the detention centre are lawful or violate the Charter. That issue is completely bound up with the evidence of the nature and extent of the criminal activity the applicants are alleged to have been involved in. That the issue being dealt with on the main application – conditions of detention – cannot be severed from the evidence of alleged criminal activity, is demonstrated by the result of phase one of the main application. In my reasons for judgment I conclude that the evidence of criminal involvement against the applicants Fahim Ahmad and Zakaria Amara is such that the non-communication orders made under ss. 516(2) and 515(12) are valid. I conclude that the evidence of criminal involvement against the other applicants is such that the orders pursuant to ss. 516(2) and 515(12) cannot be maintained in their original form. There could be no reporting on the issues being dealt with on the main application, balanced or otherwise, without reference to the evidence of criminal involvement of the applicants and its differential impact.
[6] I would note that the Toronto Star has not been prevented from publishing about the conditions of the applicants’ confinement. A number of articles have been published dealing with conditions of confinement based on interviews with counsel. I would also note that the superintendent of Maplehurst Correctional Complex testified that he did not believe that the Toronto Star had contacted Maplehurst seeking any such information. There are other sources for the information that the Toronto Star wishes to publish. While that is not determinative, it tends to show that the non-publication order in this case is having limited impact on the freedom of the press.
[7] Contrary to Mr. Wong’s submission that the reasons of Durno J. at para. 53 of his judgment published at [2007] O.J. No. 752support the Toronto Star’s submission, I find those comments support my conclusion. In the case I am dealing with the conditions at the jail are one of the main focuses of the evidence on the s. 521 application, and not a sideline.
[8] I am also dealing with a mandatory order. If the order is sought the Criminal Code requires that I grant it. This is a very different set of circumstances than those behind the judgments of the Supreme Court of Canada in R. v. Mentuck, 2001 SCC 76 (CanLII), [2001] 3 S.C.R. 442, and Dagenais v. Canadian Broadcasting Corp., 1994 CanLII 39 (SCC), [1994] 3 S.C.R. 835. The Toronto Star has not challenged the constitutional validity of s. 517(1) of the Criminal Code.
[9] The non-publication order pursuant to ss. 521(10) and 517(1) shall remain in full effect.
___________________________
DAWSON J.
Released: July 24, 2007
COURT FILE NO.: 1750/07A
DATE: 20070724
| ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
TORONTO STAR NEWSPAPER LTD.
Intervener
– and –
FAHIM AHMAD, ZAKARIA AMARA, SHAREEF ABDELHALEEM, QAYYUM ABDUL JAMAL, YASIN ABDI MOHAMED, JAHMAAL JAMES, AMIN MOHAMED DURRANI, STEVEN CHAND, SAAD GAYA, AND MOHAMMED ALI DIRIE
Applicants
– and –
SAAD KHAILD
Applicant (Respondent on Cross-Application by the Crown in the Right of Canada)
– and –
HER MAJESTY THE QUEEN IN THE RIGHT OFCANADA
Respondent (Applicant on Cross-Application Against Saad Khalid)
– and –
HER MAJESTY THE QUEEN IN THE RIGHT OFONTARIO Respondent
REASONS FOR JUDGMENT
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